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Join the conversation! There are now 23 comments on this chapter's page 106. Waiver: A Free Pass. What are your thoughts?
  1. Gregory Bogosian says

    So under the current system, the right to remain silent is waivable. But the right to argue in court that the right to remain silent was not waived when the state claims that it was waived is unwaivable. Is that right?

    • Nope. A guilty plea typically waives all challenges to the evidence (and other things).

      Some rights are never waivable (Brady, for example), but the right to a suppression hearing isn’t one of them.

      • Even if you claim that said guilty plea was gotten involuntarily?

        Would it be getting too far ahead if I asked what happens when: there’s no proof that something was said under the PROPER conditions, and the defendant claims it was not, but the police claim it was.

        • Most judges go through a fairly thorough litany at the time of a guilty plea to foreclose any future claims that the plea was involuntary. As a result, it is rare for someone to succeed on a claim that their plea was involuntary.

          To foreclose your second situation, a lot of formal interrogations involve a Miranda waiver form, where the defendant initials each of the warnings and signs an explicit waiver of the rights. My script has one appearing in a few pages (good lord, I’ve had this scripted for what seems like ages — I can’t wait to wrap it up), but first I want to get through the how and why that makes them necessary. Some police departments are now videotaping their interrogations, including the reading of the rights and waiver. (And they’re finding that the benefits outweigh the risk of revealing what goes on in the room.)

          But if there’s no piece of paper or video to show that the waiver took place (as is usual for statements outside a formal interrogation), it’s a he-said-she-said at the suppression hearing, between the police officer and the defendant. And as a rule defendants do not take the stand at suppression hearings.

          • I suppose this is one of the reasons for the increased call for police officers to be equipped with lapel or earpiece cameras.

            • Not the least of which is it tends to protect the officers from false allegations of brutality. While at the same time deterring officers from being bad, knowing it’s being recorded, which also reduces allegations. And while providing evidence of crimes they witnessed. From what I’ve heard, the police departments that try them out soon find that they love the results. The cost is de minimis nowadays, so I’d expect the trend to accelerate as police leaders and local politicians learn of the pro-police benefits.

              • And, let’s face it, the police can generally nail you for _something_ if they’ve taken an interest in you.

              • The cost is fairly minimal for the cameras, but it could get prohibitively expensive depending on how the Freedom of Information Act (FOIA) applies to the recordings.

                If it applies, then you’d be required to store the data from the videos for 7 years before destroying it. Storing a large amount of high quality video from a lot of people, recorded over a long period of time, is not actually that cheap.

                Now if the FOIA doesn’t apply, or they ignore the FOIA, or they record low quality, or the force is well-funded per officer, then I could see it. But the cost could be very considerable.

                • I handle video recordings at work. We are only required to keep 30 days. If someone wants to make a FOIA request which isn’t related to an identified incident where mgmt is supposed to save the video, they better make sure staff know about it so it can be saved before the hard drive loops or the system crashes (it’s like any other hardware, it can fail, including failure to record, which happens more often than I like). If the video is saved, we keep it for 3 years after the last action/communication concerning it.

                    • Furthermore… FOIA permits charging a fee, especially when a lot of work is required or the same person comes back for more.

          • “It’s a he-said-she-said at the suppression hearing, between the police officer and the defendant. And as a rule defendants do not take the stand at suppression hearings.”
            It sounds like so long as the cops claim to have done it right, nothing is getting suppressed.

  2. Librarian says

    Do waivable rights fall under the label inalienable, while non-waivable rights fall under natural law of unalienable? Or how do they work?

    I’d love a list of waivable rights, but it seems you’ll get to that later, so I’ll wait.

    • Erm, I’m not exactly a legal expert, but… if you can waive a right, doesn’t that ipso facto make it not inalienable?

    • When Jefferson wrote the Declaration of Independence, he used both spellings in various drafts — it has the same meaning either way, and still does. They’re not two different words with different meanings.

      Also, it’s pretty clear he didn’t think governments couldn’t take away an individual’s life, liberty, [property,] or pursuit of happiness. That would mean there could be no criminal punishment. One of the major functions of the state is to monopolize that very function. Instead, it reflects the enlightenment philosophy that the State couldn’t deny such things to a person before he was even born, or for no good reason. What he was talking about, in other words, was the idea that the State couldn’t take such things away just because it felt like it — the individual could only be deprived of such things by Due Process of Law.

      It’s important to note that this motto of inalienable rights is not itself law. In fact, the law does not refer to inalienable rights. There are constitutional rights, statutory rights, entitlements, and so on. And not all are created equal. Some are more protected than others. Most are waivable. Some are more easily waived than others.

      There aren’t many things you cannot waive. Once the right to counsel has been asserted, it can’t be waived. Some conflicts of interest are so extreme that they cannot be waived. You can’t waive subject-matter jurisdiction. You can’t waive your Brady right to disclosure of exculpatory information. Stuff like that. But you can waive your right to trial by jury, to indictment, to speedy trial, against double jeopardy, to confront witnesses, against unreasonable search and seizure, to remain silent, to counsel (until asserted), against most conflicts of interest, to appeal, etc. etc. etc.

      • I’m guessing double jeopardy comes up in bargaining, where they agree to some terms on the condition that if they break those terms they would be prosecuted again? Otherwise…?

        Or is that something we’ll see in con law?

        • Plea bargains are about finality. Most plea bargains don’t even have conditional terms — the defendant pleads guilty to a lesser charge, and then gets sentenced on that lesser charge, period.

          There are plenty of pleas where the outcome is conditioned on whether the defendant does something in the meantime — such as completing a drug program, or doing some community service, or what have you. But the various outcomes are specified ahead of time and are part of the plea. If he screws up, he’s still stuck with his plea and he’s getting sentenced on it. The conditions just give him ways to get an even better sentence. But the court isn’t going to let him have his plea back and let the case proceed to trial just because he failed to live up to one of those conditions.

          Where you see double jeopardy come up in plea bargaining is more where the court has already accepted the plea, and then on its own volition decides to vacate the plea entirely. Some jurisdictions say that violates double jeopardy, others say it’s fine. It’s rare, in any event.

  3. Gregory Bogosian says

    If a city were to set up speakers everywhere within its borders that constantly broadcast a recording of the Miranda recitation. So that everyone in the city constantly heard the Miranda recitation, then would that entail that all statements made within city limits are admissible as evidence in criminal court?

    • I don’t think so (also, who the hell would live in that city?). I mean, even without speakers, you could make an argument that “everyone knows the Miranda rights”, since they’re pretty much ingrained in popular culture. But you still need to read them when someone is arrested.

    • I believe the distinction is that the denizens of Speaker City still need to know that they have been seized and the Miranda rights now apply.

      It would shorten the recitation to “The stuff coming over the speakers now applies.”

      Though I bet a bunch if people would be so used to it they would say “What stuff?”

      • You’re forgetting the people who first remove earbuds, then say “Sorry, what did you say?”

        And then the cop can’t remember the Miranduh thing…

  4. Ann Onymous says

    Can I just say that I love the way Sis breaks the fourth wall? (Also Pi’s confusion which, I kinda share.)
    You know, Sis’ brother doesn’t have a name, even though he’s literally the first character in this webcomic. And are both of them supposed to be children??? Or at least Sis? Because she’s definitely prepubescent. But then that means they’re incredibly intelligent, to be discussing the intricacies of law like they do.

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